R v Su [2021] NSWDC 788

District Court New South Wales

Medium Neutral Citation: R v Su [2021] NSWDC 788 Hearing dates: 23 October 2021 Date of orders: 23 October 2021 Decision date: 23 October 2021 Jurisdiction: Criminal Before: Neilson DCJ Decision: See [54]-[56]. Catchwords: CRIME – SENTENCE – BREAK, ENTER, COMMIT SERIOUS INDICTABLE OFFENCE – INTIMIDATION – ASSAULT OCCASIONING ACTUAL BODILY HARM – FIREARM OFFENCES – Whether offender has good prospects of rehabilitation – Whether offender crosses the s 5 threshold – Whether Intensive Correction Order appropriate. Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Firearms Act 1996 (NSW) Cases Cited: Casella v R [2019] NSWCCA 201 Mandranis v R [2021] NSWCCA 97 R v JCA [2000] NSWCCA 498 R v Zamagias [2002] NSWCCA 17 Texts Cited: Nil. Category: Sentence Parties: Crown- Regina Offender – Yifei Su Representation: Crown - Rixon Offender - Galluzzo File Number(s): 2020/00304556 Publication restriction: Nil.

Judgment

The offending 1. HIS HONOUR: Yifei Su stands for sentence as a consequence of pleading guilty to a number of charges. I am to sentence him for an offence of aggravated breaking, entering and committing a serious indictable offence contrary to s 112(2) Crimes Act 1900. The premises into which he broke were those that he had previously occupied with Ms Wenting Xie, with whom he was in a bona fide domestic relationship from some time in 2017 until March 2020. The agreed facts say that it was until January 2020, but Ms Xie in her letter to the Court states that they did not separate until March 2020. The serious indictable offence which the offender committed was intimidation of those present within the dwelling. The circumstances of aggravation were that at the time that he broke into the premises, he knew that she was present in those premises. 2. The circumstances of breaking were technical. The door was unlocked and he opened it. He turned a knob, or pushed a handle, or the like, to cause the door to open, and that is in law a "breaking". Inside the premises he assaulted both Ms Wenting Xie and her then boyfriend Mr Ce Wang. The offender has pleaded guilty to assaulting each of Ms Xie and Mr Wang. He has been committed for sentence in this Court for those offences. 3. The offender asks me to deal with him as well for two breaches of the Firearms Act 1996. One is a breach of s 39(1)(a) of that Act, not taking all reasonable cautions to ensure that a firearm was safely kept, and an offence under s 41(1) of that Act of not having approved storage in compliance with the requirements of the Act. The maximum penalty for each of those offences is imprisonment for two years and/or 50 penalty units, that is, a maximum fine of $5,500. 4. Returning to the principal offences, the maximum penalty for aggravated breaking, entering and committing a serious indictable offence is imprisonment for 20 years. Parliament has prescribed a standard non-parole period of five years. The maximum penalty for common assault is imprisonment for two years. There is no standard non-parole period. Although the offender was charged with common assault these assaults appear to have caused actual bodily harm, and although I shall describe that, I cannot take it into account because that would be taking into account more serious offences than those for which the offender stands for sentence. 5. During his relationship with Ms Xie, she and the offender resided at Unit 1106/260 Coward Street, Mascot. When they separated, the offender went to live elsewhere in that apartment block, Unit 519. The unit in which Ms Xie continued to reside was in a secure unit block that requires an access fob to enter the lobby and gain access to any level of the building. To open the front door of Ms Xie's unit a PIN code is usually required rather than a key. On the date of the offence the lock was broken and the door could be opened without use of the PIN code even though the PIN code was in fact known to the offender. 6. The offender and Ms Xie had developed their romantic relationship as a result of her working for him. After their romantic relationship ceased, and they stopped living together as man and wife, the victim continued to work for the offender's company. They remained in contact a few times each week. 7. At about 1.10am on 23 October 2020 the victim received a message from one of the offender's friends who was known to her as Wang. The text message read: "Yifei is drunk and wants to come to your property, we are on the way." The victim, Ms Xie, replied asking that Wang stop the offender coming to her home because her boyfriend was there. Wang replied: "We will be there shortly, can't stop him because he's drunk." 1. At about 1.16am, closed-circuit television ("CCTV") outside the victim's unit door captured the offender and his two friends approaching the residence. The offender knocked on the door before opening it. He entered with his two friends, the man known to Ms Xie as "Wang" and another man known as "Frank". 2. After entering the unit the offender approached Ms Xie's new boyfriend, Mr Ce Wang, who was in the living room, and began yelling at him, saying, amongst other things, "Fuck you". Mr Wang had never met the offender before and asked him on numerous occasions "who are you?" The offender attempted to hit Mr Wang in the face but missed. Mr Wang grabbed the offender and the two began to struggle, falling to the couch. During the struggle the offender bit Mr Wang's fingers. That is a very unmanly act for any adult male. 3. In the meantime, Ms Xie was attempting to separate them and, as she was doing that, the offender slapped her across the face with the back of his hand. Ms Xie called upon his two friends, Wang and Frank, to assist in separating the offender and her new boyfriend Mr Ce Wang. They helped her to do so. Mr Wang said that he was going to call the police, and the offender walked into the kitchen area. The offender said, "I won't keep you alive to see the police". That is a threat of violence. 4. Mr Wang went into a bedroom in the residence and attempted to call the police but stopped when one of the offender's friends, who is not clear, asked him not to call the police. Mr Wang did not call the police at that time, but he then heard some slapping sounds from the kitchen. He left the bedroom and asked the offender again who he was, and why he was in the house. The offender said that he had bought all the furniture in the room and began to try to fight with Mr Wang again. The offender tried to kick Mr Wang but he missed, doing damage to the wall behind him. 5. Mr Wang then went back to the bedroom and used his mobile phone to call police. That caused the offender, together with his two friends, to leave the building. When Mr Wang returned to the lounge room the offender and his two friends had gone. CCTV footage shows the three leaving the apartment at 1.31am. By that time the offender was shirtless. The relevant action occurred between 1.16am and 1.31am, a period of 15 minutes. 6. As a result of the offence, Mr Wang suffered bruised and cut fingers, scratches on his abdomen, and scratches on his shoulder. Ms Xie suffered a scratch to her elbow and had red marks on her knees. 7. At 5.45pm on that day, Police attended an address in Pyrmont, which I assume was the offender's business address, and placed him under arrest. During the arrest the offender was asked if he had any firearms and told Police that he had firearms at his address in Mascot. He gave the Police the keys to the gun safe at his address in Mascot. 8. The offender was taken to the Mascot Police Station, but exercised his right to decline to participate in an electronically recorded interview. 9. Police attended the offender's unit. In the bedroom occupied by the offender, they found a safe within the wardrobe. Police used the safe key provided by the offender to open the safe and located the two firearms lawfully registered to the offender. Each firearm was a nine millimetre pistol. However, each was loaded with a round in the chamber. Also in the safe were two magazines of ammunition. The safe did not meet the requirements of a "Category H" safe as it was not properly secured by at least four anchor points to a suitable surface. The safe was not anchored at all, and could freely be pushed around the base of the wardrobe. Furthermore, the firearms were not at the address to which they were registered. The inference to be drawn is that they were probably registered to the premises in which Ms Xie continued to reside, and in which she and the offender had resided when they were living together as man and wife. 10. One can understand the gun safe's not being secured by anchor points to a suitable surface. It is likely that the unit occupied by the offender at the time of the offence was rented and his lease would not have permitted him to anchor the safe, for example, to the floor, or to the landlord's fixtures. According to a history given by the offender, the firearms ammunition was in the gun safe because the proper container for the ammunition was "broken". 11. In evidence is a letter from Ms Xie bearing date 28 September 2021. At its commencement she sets out the circumstances which led to their relationship, their being together, and their separating. The letter continues in this fashion: "Following the incident on 23 October 2020, Su contacted me by his lawyer expressed his apology, and he paid $500 for the damage to the property, I wholeheartedly accept his apology. I honestly believe the incident on 23 October 2020 would never occur if he didn't drink alcohol the day before, and I understand he was under unbearable stress at the time from the failure of our relationship, the tour bus business, and creditors for unpaid debt, and his financial responsibility to his two children from previous relationship. I would like to take this opportunity to ask the court to give Su an opportunity, he is a very kind person, I saw everyone work with him respect Su as a responsible and helpful colleague, when there is something happened and any of his friends or colleague need help, Su always give them a hand without ask. He has been highly regarded by colleagues, customers and friends. I wish him the best in that endeavour as he may continue the positive contribution that he makes to his two children and our society." In the final paragraph of the letter, Ms Xie points out that she has no fear of the offender and would like the Apprehend Violence Order which has been put in place to be varied so that she and the offender can talk to each other, and so that he can attend her current residence to move his personal belongings, some of which are still in her dwelling. 1. It is unusual, to say the least, for a victim to give such a reference to the person who assaulted her.